BARNSTABLE & SWINTON

[2011] FamCA 675

FAMILY COURT OF AUSTRALIA

BARNSTABLE & SWINTON [2011] FamCA 675

FAMILY LAW – PROCEDUE – stay while seeking appeal – interpretation of the slip rule

APPLICANT: Ms Barnstable

RESPONDENT: Mr Swinton

FILE NUMBER: SYC 5996 of 2009

ORDERS MADE: 31 August 2011

DATE DELIVERED: 1 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 31 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: Dorrough Smart

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders made 31 August 2011

1. That the Application in a Case filed by Ms Barnstable on 12 August 2011 is dismissed.

2. Any application for costs by the respondent is to be made in a written submission filed with my associate on … and served on the solicitor for the applicant by 12.00 noon on 5 September 2011.

3. Written submissions in reply shall be filed with my associate and served on the solicitor for the respondent by 12.00 noon on 8 September 2011.

4. Any submissions in response shall be filed with my associate by 12.00 noon on 12 September 2011.

It is further ordered

1. Proposed Order 3 of the Response to an Application in a Case filed by Mr Swinton on 30 August 2011 is adjourned pending finalisation of the applicant’s Notice of Appeal filed 15 August 2011 or further order of the Court, whichever first occurs.

IT IS NOTED that publication of this judgment under the pseudonym Barnstable and Swinton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5996 of 2009

Ms Barnstable

Applicant

And

Mr Swinton

Respondent

REASONS FOR JUDGMENT

1. On 15 July 2011, I delivered judgment and made orders in parenting and property settlement proceedings between the parties which finalised all aspects of their litigation.

2. Order 12 required that Ms Barnstable (“the applicant”) give Ms (“the respondent”) their son’s Country B passport.  The effect of Order 13 was that other than when the child travelled abroad with the respondent on an itinerary which required either or both of his Australian and Country C passports, those two passports would remain with the applicant.

3. Against Order 12 the applicant has appealed.  Pending determination of her appeal, the applicant on 12 August 2011 sought that the Court stays Order 12.  In the alternative, pursuant to the slip rule that the subject order be discharged.  Counsel for the applicant appropriately conceded that the slip rule had no application to the facts in this case.  The point being it was contended the agreed fact would require the Court to re-exercise its discretion.

4. The respondent filed a Response on 30 August 2011.  Summarised, he sought dismissal of the applicant’s stay application, enforcement of Order 12 and a stay pending action in relation to the appeal by the applicant, of the respondent’s obligation to pay the entire amount ordered in her favour in the property settlement proceedings.  In the event, that application will await steps taken in relation to the appeal.

The applicable law

1. The authorities make plain a stay is not ordered as a matter of right.  It is discretionary, and the decision to grant or refuse a stay will depend upon the circumstances of the particular case.  In relation to an application to stay parenting orders, the Full Court in Truong & Liu (Chen) (No. 2) [2008] FamCAFC 194 described the process thus:

   38.These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:

   ·       the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;

   ·       a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·       the person who has obtained a judgment is entitled to presume the judgment is correct;

   ·       the mere filing of an appeal is insufficient to ground a stay;

   ·       the bona fides of the applicant;

   ·       a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·       a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;

   ·       some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;

   ·       the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·       the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and

   ·       the best interests of the child the subject of the proceedings.

   See also Friscioni & Friscioni [2009] FamCAFC 43.

Notice of appeal

1. The applicant’s Notice of Appeal sets out four grounds of appeal.  These are set out below:

   1.Her Honour’s finding [and Order] that the father should have possession of [the child’s] Country B passport was based on extraneous matters and on a finding [i.e. an Australian citizen is at liberty to leave Australia and/or return to Australia on a Passport other than on an Australian Passport], that was incorrect thereby causing Her Honour’s discretion to miscarry.

   2.Her Honour failed to properly consider what was in the child’s best interests and otherwise address pertinent matters in Section 60CC(3) when finding the father should have possession of [the child’s] Country B Passport.

   3.Her Honour failed to give adequate reasons when finding the father should have possession of [the child’s] Country B Passport.

   4.Her Honour’s discretion miscarried due to failure to provide a material agreed fact to the court prior to judgment.

Discussion

1. Turning then to the grounds of appeal.  In Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 Kirby J said that a decision on a stay application should not become an occasion for a detailed analysis of the issues that would arise in the special leave application and, if granted, the appeal. His Honour noted that the evaluation of the prospects of success will necessarily involve a matter of judicial impression. That judicial impression, his Honour noted, does not predetermine one way or the other the substantive application. A similar approach is appropriate and adopted in consideration of a stay application pending an appeal to this Court’s Full Court.

2. Counsel for the applicant highlighted paragraphs 121 and 122 of my reasons for judgment, which it was said constituted pivotal findings in relation to which of the parties should have the child’s Country B passport.  These paragraphs, however, need to be considered in the context of my discussion about the child’s best interests.  In any event, paragraphs 121 and 122 are as follows:

   There is a surprisingly intense dispute about which of the parties should retain the child’s [Country B] passport.  The child has Australian, [Country B] and [Country C] citizenship and holds passports issued by each country.  The mother retains the child’s passports and has made his Australian passport available when the child has travelled internationally with the father.  In this regard, the child and father have travelled together (without the mother) to [Country] B and to [Country D].  The father has not attempted to withhold the child overseas nor in the six years of regular contact in Australia.  The father impressed as a responsible parent who supports the child’s relationship with the mother.  No matter which passport the child travels on, I am strongly satisfied the father will return the child to the mother in accordance with the orders. 

   As I understood the mother’s argument, an Australian citizen can only depart Australia and return on an Australian passport.  She did not present evidence which supports this proposition.  The father, who travels on a [Country B] passport, gave evidence that on entry to [Country B] the child was unable to use the European Union entry channels which meant much longer queues on arrival.  Because the child is more likely to travel to [Country B] and elsewhere with the father and the father travels on a [Country B] passport, I am satisfied that the father should retain the child’s [Country B] passport.  This is likely to mean that when the child meets the father overseas, he will use his Australian passport to that point and thereafter travel on his [Country B] passport.  As has been the situation to date, the father shall return the child’s Australian passport to the mother.

3. Particular emphasis was placed on the first two sentences of paragraph 122.  The significance of these is that, unknown to me, during the hearing agreement was reached between those representing the parties “… that if you are an Australian citizen, you must exit Australia on an Australian passport.  You must enter Australia on an Australian passport”.  There remained an issue about “[w]hat happens when you go to and leave the destination country is nothing to do with Australia?  Australian can’t dictate what passport to use on arrival at the destination country”.  This agreed fact was not brought to my attention prior to judgment being reserved. 

4. After judgment was reserved the legal representatives agreed that a note would be provided to me in the following terms “[i]t is common ground between the parties that [the child] must exit and enter Australia on his Australian passport”. 

5. On 2 July 2011, a draft letter for consideration by the respondent’s solicitor was prepared and on behalf of the applicant it was emailed to the respondent’s solicitor.  The email was not received by the respondent’s solicitor and, in the absence of follow up, the note was not sent to me.

6. Judgment was delivered and orders made on 15 July 2011.  On that occasion counsel who then appeared for the applicant and who had the conduct of the trial (but not this application) and submitted the draft note for consideration by the respondent’s solicitor appeared on the applicant’s behalf.  The respondent’s solicitor appeared for him.  No mention was made of the agreed fact nor was there an application to reopen to enable the Court to receive it.  Responsibility for this omission does not sit with the respondent.  Absence any further mention I accept it was reasonable for the respondent to infer a decision had been made not to bring this matter to the Court’s attention.

7. It is the applicant’s case that the effect of these omissions was to cause the Court’s discretion to miscarry and that informed of the agreed fact, on this issue, the Court’s discretion may have been exercise differently. 

8. The first two sentences of paragraph 122 address the possibility that it may be necessary for the child to travel to and from Australia on his Australian passport.  The issue about his Country B passport is dealt with in paragraph 121 and the balance of paragraph 122.  As the balance of paragraph 122 indicates, I accepted “[t]his is likely to mean that when the child meets the father overseas, he will use his Australian passport to that point and thereafter travel on his Country B passport.  As has been the situation to date, the father shall return the child’s Australian passport to the mother”.  Indeed, Order 14 provides:

   The mother and the father shall each release to the other any of the child’s passports necessary for travel pursuant to these orders, and the one receiving the passport or passports pursuant to this order shall return it or them to the other within 14 days of the end of the child’s trip.

9. Relevantly Order 14 requires that in the event the child must depart and enter Australia on his Australian passport that the mother makes it available. 

10. Although the Full Court may, as I am, be discomforted that an agreed fact was not brought to the Court’s attention prior to delivery of judgment, in circumstances where the orders and reasons are not inconsistent with the agreed fact, given the nature of appeals, ground 4 is assessed are more unlikely than likely to attract appellate intervention.

11. The balance of the grounds as articulated did not appear to enhance the probability of the applicant’s success on appeal.  When the grounds are considered in the context of my knowledge of the evidence and the analysis of those issues in my reasons, I am unable to find the appeal is based on substantial grounds.

12. The mother is bona fide in her desire to overturn Order 12 and the appeal is not merely a delaying tactic. 

13. It was contended by counsel for the applicant that a refusal to grant a stay would render her appeal nugatory.  As a compromise position, it was submitted that her solicitor or the Court would hold the child’s Country B passport pending determination of the appeal.  I accept the submission by the solicitor for the respondent that in the event the applicant is successful on her appeal, the child’s Country B passport can be returned to the applicant and thus a refusal to grant a stay does not render her appeal nugatory.  Placing the Country B passport with the applicant’s solicitor or with the Court was unnecessary.

14. In support of an argument of hardship, it was submitted on the applicant’s behalf that she feels deeply the necessity to retain possession of the child’s Country B passport.  In this regard, it is common ground that the child will continue to travel abroad with the respondent on at least his Australian passport.  His Country C passport will remain with the applicant.  Thus, the effect of the orders will see the child abroad, without the applicant, in the care of the respondent who has possession of at least one passport.  Hardship to the applicant is said to arise if on those occasions the respondent had two of the child’s three passports.  In circumstances where there is no challenge to my finding that “no matter which passport the child travels on, I am strongly satisfied the father will return the child to the mother in accordance with the orders” the applicant has not established hardship if the stay is refused.  Nor, did the applicant establish that a refusal to grant a stay was potentially contrary to the child’s best interests.  While there was emphasis that the applicant was troubled by the consequence of Order 12 the evidence did not establish that this may somehow adversely affect the child.  The Court, having determined that it was in the child’s best interest that the father have his Country B passport more was required in the applicant’s case to show that giving effect to the Court’s decision was somehow inconsistent with the child’s best interests.

15. The transcript will disclose the applicant’s offer to withdraw her appeal on the basis that Order 12 was discharged and upon the Court receiving the agreed fact, I re-exercise my discretion.  This was a sensible approach to this unfortunate situation which I was happy to accommodate.  It is with regret that I record the respondent refused to cooperate.  His refusal to cooperate has not influenced the exercise of my discretion.  It may, however, be relevant to any costs application.  In this regard I note that appropriately the applicant will not be charged for this application.  A similar approach by the solicitor for the respondent should receive serious consideration.

16. On balance, the totality of the facts weigh against the granting of the stay and the application will be dismissed.  The respondent’s proposed Order 3 will be adjourned pending further order.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 1 September 2011.

Associate:     

Date:              1 September 2011